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Thursday, September 20, 2012

From a legal point of view

The estimable ScotusBlog is continuing its online symposium on same sex marriage, with legal scholars both pro and con weighing in. Steven Sanders points out that "mini DOMAs" (the state Constitutional amendments like Prop8) are an interference in the democratic process and inevitably will demand federal court action.

For what amounts to a question of family law affecting a small
minority of the population, this is not how the political process is
supposed to work. Respected conservative Judge J. Harvie Wilkinson of
the U.S. Court of Appeals for the Fourth Circuit has condemned mini-DOMAs
as a “tragedy” that offend the “American constitutional tradition” and
“risk trivializing” constitutions by burdening them with “essentially
statutory provisions.” As Wilkinson wrote presciently in 2006:

[I]t is legislative bodies that broker compromises among
opposing beliefs and zealous factions, and it is legislatures that adapt
to changing public preferences and circumstances. It is impossible to
predict what views electoral majorities may entertain five, ten, twenty,
or fifty years hence on same-sex relations. It is the job of
legislatures, not constitutions, to reflect evolving standards and to
register change from whatever direction it may arrive.

Mini-DOMAs also offend due process and federalism, I have argued, by purporting to nullify the valid same-sex marriages of couples who migrate from states where such marriages are legal.

It's an excellent article about the problem of amendments, in an era where views are changing quickly.